Tuesday, April 22, 2008

A heroic, if doomed exercise?

On the face of it, says The Daily Telegraph leader, he is "engaging in a doomed, if heroic, exercise".

This is millionaire Tory donor, Stuart Wheeler, who is at the High Court today to seek a judicial review of the government's refusal to hold an EU referendum.

According to the BBC website, he is confident of winning the case and believes his legal challenge could delay the ratification of the constitutional Lisbon treaty by months, on the basis that the treaty could not be ratified while a review was pending.

As an aside, Wheeler is relying on the fact that the judicial review process comes in two parts. Firstly, there is an application for leave to appeal which, if granted, then results in a full hearing, which can be as long as a year after the initial hearing.

That, however, is not always the case. I recall seeking leave on a high profile case which we successfully obtained on the Thursday, only to be told that the full hearing would be on the following Monday – which we lost. Wheeler may find himself in the same situation.

Anyhow, as to this case, Wheeler is insisting that he is "not trying to interfere with Parliament". "Our complaint," he says, "is against the prime minister and the foreign secretary for refusing to hold a referendum, which they could well have done, without interfering with Parliament in any way at all." He adds that, "This is going to be argued at a high level by excellent barristers and I believe we shall get the permission we need."

In its leader, The Telegraph takes up the story, observing that, "it may appear futile to attempt to hold a government legally liable for not keeping its word." But on closer examination, it says, "Mr Wheeler's case seems far more substantial on points of law than might have been expected."

The action, we are told, cites the numerous documented cases of statements from ministers (including the previous prime minister), both within the House of Commons and outside it, reiterating their undertaking to consult the people on the fundamental changes to parliamentary sovereignty proposed by the original constitution.

It also offers the testimony of both the House of Commons European scrutiny committee and the foreign affairs committee, to the effect that there are no substantive differences between that constitution and the Lisbon Treaty.

The action does not attempt to cause the courts to over-rule Parliament's ratification of the treaty: it is taken against the executive, not the legislature, and is based on the established legal doctrine of "legitimate expectation", which has successful precedents.

In a previous case, says the paper, the principle was explained as "a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public".

Thus does The Telegraph conclude, "Let Mr Wheeler's action stand as a test of whether any government should be permitted to flout the most basic standards of honest dealing with the nation."